Salamat Ansari V State of UP, 2020-Compressed

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.
Page 1 Saturday, December 04, 2021

Printed For: Mr. M R Shamshad AoR
SCC Online Web Edition: http://www.scconline.com
© 2021 EBC Publishing Pvt.Ltd., Lucknow.
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2020 SCC OnLine All 1382 : 2021 Cri LJ (NOC 39) 13 : (2020) 3 HLR 667 (DB) :
(2021) 114 ACC 543 : (2021) 1 All LJ 453 : (2021) 144 ALR 899 : (2021) 218
AIC 860
In the High Court of Allahabad

(BEFORE PANKAJ NAQVI AND VIVEK AGARWAL, JJ.)
Salamat Ansari and Others … Petitioners;

Versus
State of U.P. and Others … Respondents.
Crl. Mis. Writ Petition No. 11367 of 2020
Decided on November 11, 2020
Advocates who appeared in this case:
Counsel for Petitioner : - Rakesh Kumar Mishra
Counsel for Respondent : - G.A., Ritesh Kumar Singh
The Order of the Court was delivered by
PANKAJ NAQVI, J.:— Heard Sri. Rakesh Kumar Mishra, learned counsel for the
petitioners, Sri. Ritesh Kumar Singh, learned counsel for the informant and Sri.
Deepak Mishra, the learned A.G.A.
2. Learned AGA and the learned counsel for the informant do not propose to file any
counter affidavit. With the consent of all, the petition is being heard and finally
decided under the rules of the Court.
3. This writ petition has been filed, seeking a writ of mandamus, directing the
respondent concerned, not to arrest the petitioners, with a further prayer for quashing
the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019,
under Sections 363, 366, 352, 506 I.P.C. and Section 7/8 POCSO Act, Police Station-
Vishnupura, District Kushi Nagar.
4. Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked
the extraordinary jurisdiction of this Court for seeking quashment of an FIR dated
28.08.2019 as Case Crime No. 0199 of 2019 under Sections 363, 366, 352, 506 IPC
and Section 7/8 POCSO Act, Police Station Vishnupura, Kushinagar on the premise
that the couple is of the age of majority, competent to contract a marriage, performed
Nikah on 19.08.2019 as per muslim rites and rituals, after Priyanka Kharwar
renounced her Hindu identity and embraced Islam. It is further submitted that the
couple has been living together as husband and wife since last one year peacefully and
happily. It is finally submitted that the FIR lodged by father of petitioner no.
4/Priyanka Kharwar @ Alia is prompted by malice and mischief only with a view to
bring an end to martial ties, no offences are made out, FIR be quashed.
5. Learned AGA and learned counsel for the informant vehemently opposed the
submissions on the premise that conversion per se for contracting a marriage is
prohibited, said marriage has no sanctity in law, thus this Court should not exercise its
extra-ordinary jurisdiction in favour of such a couple. They relied on a judgment of a
Learned Single Judge in Writ C No. 57068 of 2014 (Smt. Noor Jahan Begum @ Anjali
Mishra v. State of U.P.) decided on 16.12.2014 and its recent reiteration in Writ C No.
14288 of 2020 (Priyanshi @ Km. Shamren v. State of U.P.) decided on 23.09.2020.
6. There is no dispute that the couple has attained the age of majority as Priyanka
Kharwar @ Alia's date of birth as per High School Certificate (annexure 3) is
07.07.1999 which is an enlisted document in Juvenile Justice Act, 2015 for
determining the age of an individual coupled with the fact that the entry of the date of
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birth is not under challenge. The mere fact that this petition is filed and supported by
an affidavit of Priyanka Kharwar @ Alia alleged victim, goes to show that she is
voluntarily living with Salamat Ansari as a married couple.
7. Once age of Priyanka Kharwar @ Alia is not in dispute as she is reported to be
around 21 years, petitioner nos. 1 to 3 cannot be made accused for committing an
offence under Section 363 IPC or 366 IPC as victim on her own left her home in order
to live with Salamat Ansari. Similarly once Priyanka Kharwar @ Alia is found not to be
a juvenile, the offence under Seciton 7/8 POCSO Act is also not made out. Allegations
relating to offence under Section 352, 506 IPC qua petitioner no. 2 and 3 prima facie,
in view of above background, appear to be exaggerated and malafidely motivated with
a view to implicate the family of petitioner no. 1 as petitioner no. 2 and 3 are mother
and brother of petitioner no. 1 respectively.
8. We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two
grown up individuals who out of their own free will and choice are living together
peacefully and happily over a year. The Courts and the Constitutional Courts in
particular are enjoined to uphold the life and liberty of an individual guaranteed under
Article 21 of the Constitution of India. Right to live with a person of his/her choice
irrespective of religion professed by them, is intrinsic to right to life and personal
liberty. Interference in a personal relationship, would constitute a serious
encroachment into the right to freedom of choice of the two individuals. We fail to
understand that if the law permits two persons even of the same sex to live together
peacefully then neither any individual nor a family nor even State can have objection
to relationship of two major individuals who out of their own free will are living
together. Decision of an individual who is of the age of majority, to live with an
individual of his/her choice is strictly a right of an individual and when this right is
infringed it would constitute breach of his/her fundamental right to life and personal
liberty as it includes right to freedom of choice, to choose a partner and right to live
with dignity as enshrined in Article 21 of the Constitution of India.
9. The Apex Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, decided on
April 9, 2018, held as under:
“74. The principles which underlie the exercise of the jurisdiction of a court in a
habeas corpus petition have been reiterated in several decisions of the Court. In
Gian Devi v. Superintendent, Nari Niketan, Delhi31, a three-judge Bench observed
that where an individual is over eighteen years of age, no fetters could be placed on
her choice on where to reside or about the person with whom she could stay:
“7. Whatever may be the date of birth of the petitioner, the fact remains that
she is at present more than 18 years of age. As the petitioner is sui juris no
fetters can be placed upon her choice of the person with whom she is to stay, nor
can any restriction be imposed regarding the place where she should stay. The
court or the relatives of the petitioner can also not substitute their opinion or
preference for that of the petitioner in such a matter.”
(emphasis supplied)
75. The ambit of a habeas corpus petition is to trace an individual who is stated
to be missing. Once the individual appears before the court and asserts that as a
major, she or he is not under illegal confinement, which the court finds to be a free
expression of will, that would conclude the exercise of the jurisdiction. In Girish v.
Radhamony a two judge Bench of this Court observed thus:
“3. In a habeas corpus petition, all that is required is to find out and produce
in court the person who is stated to be missing. Once the person appeared and
she stated that she had gone of her own free will, the High Court had no further
jurisdiction to pass the impugned order in exercise of its writ jurisdiction under
Article 226 of the Constitution.”
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76. In Lata Singh v. State of U.P, Bench of two judges took judicial notice of the
harassment, threat and violence meted out to young women and men who marry
outside their caste or faith. The court observed that our society is emerging through
a crucial transformational period and the court cannot remain silent upon such
matters of grave concern. In the view of the court:
“17. This is a free and democratic country, and once a person becomes a
major he or she can marry whosoever he/she likes. If the parents of the boy or
girl do not approve of such inter-caste or inter-religious marriage the maximum
they can do is that they can cut-off social relations with the son or the daughter,
but they cannot give threats or commit or instigate acts of violence and cannot
harass the person who undergoes such inter-caste or inter-religious marriage.
We, therefore, direct that the administration/police authorities throughout the
country will see to it that if any boy or girl who is a major undergoes inter-caste
or inter-religious marriage with a woman or man who is a major, the couple is
not harassed by anyone nor subjected to threats or acts of violence, and anyone
who gives such threats or harasses or commits acts of violence either himself or
at his instigation, is taken to task by instituting criminal proceedings by the
police against such persons and further stern action is taken against such
persons as provided by law.”
(emphasis supplied)
77. Reiterating these principles in Bhagwan Dass v. State (NCT OF DELHI), this
Court adverted to the social evil of honour killings as being but a reflection of a
feudal mindset which is a slur on the nation.
78. In a more recent decision of a three judge Bench in Soni Gerry v. Gerry
Douglas, this Court dealt with a case where the daughter of the appellant and
respondent, who was a major had expressed a desire to reside in Kuwait, where she
was pursuing her education, with her father. This Court observed thus:
“9. She has, without any hesitation, clearly stated that she intends to go back
to Kuwait to pursue her career. In such a situation, we are of the considered
opinion that as a major, she is entitled to exercise her choice and freedom and
the Court cannot get into the aspect whether she has been forced by the father
or not. There may be ample reasons on her behalf to go back to her father in
Kuwait, but we are not concerned with her reasons. What she has stated before
the Court, that alone matters and that is the heart of the reasoning for this
Court, which keeps all controversies at bay.
10. It needs no special emphasis to state that attaining the age of majority in
an individual's life has its own significance. She/He is entitled to make her/his
choice. The courts cannot, as long as the choice remains, assume the role of
parens patriae. The daughter is entitled to enjoy her freedom as the law permits
and the court should not assume the role of a super guardian being moved by
any kind of sentiment of the mother or the egotism of the father. We say so
without any reservation.”
79. These principles emerge from a succession of judicial decisions. Fundamental
to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v.
District Magistrate, Darjeeling.
10. A perusal of the aforesaid judgment manifests that the Apex Court has
consistently respected the liberty of an individual who has attained the age of
majority.
11. The Apex Court in Shakti Vahini v. Union of India, (2018) 7 SCC 192 came
down heavily on the perpetrators of “honour killings”, which the Court found not only
horrific and barbaric but also interfering with the right to choose a life partner and the
dignity of an individual. The Apex Court held as under:—
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“44. The concept of liberty has to be weighed and tested on the touchstone of
constitutional sensitivity, protection and the values it stands for. It is the obligation
of the Constitutional Courts as the sentinel on qui vive to zealously guard the right
to liberty of an individual as the dignified existence of an individual has an
inseparable association with liberty. Without sustenance of liberty, subject to
constitutionally valid provisions of law, the life of a person is comparable to the
living dead having to endure cruelty and torture without protest and tolerate
imposition of thoughts and ideas without a voice to dissent or record a
disagreement. The fundamental feature of dignified existence is to assert for dignity
that has the spark of divinity and the realization of choice within the parameters of
law without any kind of subjugation. The purpose of laying stress on the concepts of
individual dignity and choice within the framework of liberty is of paramount
importance. We may clearly and emphatically state that life and liberty sans dignity
and choice is a phenomenon that allows hollowness to enter into the constitutional
recognition of identity of a person.
(emphasis supplied)
45. The choice of an individual is an inextricable part of dignity, for dignity
cannot be thought of where there is erosion of choice. True it is, the same is bound
by the principle of constitutional limitation but in the absence of such limitation,
none, we mean, no one shall be permitted to interfere in the fructification of the
said choice. If the right to express one's own choice is obstructed, it would be
extremely difficult to think of dignity in its sanctified completeness. When two
adults marry out of their volition, they choose their path; they consummate their
relationship; they feel that it is their goal and they have the right to do so. And it
can unequivocally be stated that they have the right and any infringement of the
said right is a constitutional violation…
46. It has been argued on behalf of the “Khap Panchayats” that it is a misnomer
to call them by such a name. The nomenclature is absolutely irrelevant. What is
really significant is that the assembly of certain core groups meet, summon and
forcefully ensure the presence of the couple and the family members and then
adjudicate and impose punishment. Their further submission is that these
panchayats are committed to the spreading of awareness of permissibility of
intercommunity and inter-caste marriages and they also tell the people at large how
“Sapinda” and “Sagotra” marriages have no sanction of law. The propositions have
been structured with immense craft and advanced with enormous zeal and
enthusiasm but the fallacy behind the said proponements is easily decipherable.
The argument is founded on the premise that there are certain statutory provisions
and certain judgments of this Court which prescribe the prohibitory degrees for
marriages and provide certain guidelines for maintaining the sex ratio and not
giving any allowance for female foeticide that is a resultant effect of sex
determination which is prohibited under the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition on Sex Selection) Act, 1994 (for short ‘PCPNDT
Act’) (See : Voluntary Health Association of Punjab v. Union of India12 and
Voluntary Health Association of Punjab v. Union of India13)
47. The first argument deserves to be rejected without much discussion. Suffice
it to say, the same relates to the recognition of matrimonial status. If it is
prohibited in law, law shall take note of it when the courts are approached.
Similarly, PCPNDT Act is a complete code. That apart, the concern of this Court in
spreading awareness to sustain sex ratio is not to go for sex determination and
resultantly female foeticide. It has nothing to do with the institution of marriage.”
(emphasis supplied)
12. We are conscious that above observations were made in connection with
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“honour killings” but we are of the firm view that the said principle would apply in the
present context too where a relationship of two matured individuals is sought to be
jeopardized at the whim and caprice of a parent.
13. We find from para 46 and 47 of Shakti Vahini (supra) that even if a marriage is
prohibited in law, same shall be taken note of only when the courts are approached for
recognition of such marriage, which finds further corroboration in the case of Nanda
Kumar v. State of Kerala, (2018) 16 SCC 602 which after relying upon Shafin Jahan
(supra) held that on attaining majority an individual is entitled to make his/her choice
which is pivotal and cannot be infringed by anyone. The relevant paragraphs are
quoted hereunder:—
“7. A neat submission which is made by the learned counsel for the appellants is
that the High Court has adopted an approach which is not permissible in law by
going into the validity of marriage. It is submitted that when Thushara is
admittedly a major i.e., more than 18 years of age, she has right to live wherever
she wants to or move as per her choice. As she is not a minor daughter of
respondent No. 4, “custody” of Thushara could not be entrusted to him.
8. Learned counsel for the appellants is right in his submission. Even the counsel
for the State did not dispute the aforesaid position in law and, in fact, supported
this submission of the learned counsel for the appellants…..
12. The Court also emphasised due importance to the right of an adult person,
which the Constitution accords to an adult person as under, (Shafin Jahan's case
para 52)
“Choosing a faith is the substratum of individuality and sans it, the right of
choice becomes a shadow. It has to be remembered that the realization of a right
is more important than the conferment of the right. Such actualization indeed
ostracises any kind of societal notoriety and keeps at bay the patriarchal
supremacy. It is so because the individualistic faith and expression of choice are
fundamental for the fructification of the right. Thus, we would like to call it
indispensable preliminary condition.”
14. Right to choose a partner irrespective of caste, creed or religion, is inhered
under right to life and personal liberty, an integral part of the Fundamental Right
under Article 21 of the Constitution of India. The Apex Court in KS Puttaswamy v.
Union of India, (2017) 10 SCC 1 while deciding the issue of right to privacy, held as
under:—
298. Privacy of the individual is an essential aspect of dignity. Dignity has both
an intrinsic and instrumental value. As an intrinsic value, human dignity is an
entitlement or a constitutionally protected interest in itself. In its instrumental
facet, dignity and freedom are inseparably inter-twined, each being a facilitative
tool to achieve the other. The ability of the individual to protect a zone of privacy
enables the realization of the full value of life and liberty. Liberty has a broader
meaning of which privacy is a subset. All liberties may not be exercised in privacy.
Yet others can be fulfilled only within a private space. Privacy enables the individual
to retain the autonomy of the body and mind. The autonomy of the individual is the
ability to make decisions on vital matters of concern to life. Privacy has not been
couched as an independent fundamental right. But that does not detract from the
constitutional protection afforded to it, once the true nature of privacy and its
relationship with those fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected freedoms. The guarantee
of equality is a guarantee against arbitrary state action. It prevents the state from
discriminating between individuals. The destruction by the state of a sanctified
personal space whether of the body or of the mind is violative of the guarantee
against arbitrary state action. Privacy of the body entitles an individual to the
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integrity of the physical aspects of personhood. The intersection between one's

mental integrity and privacy entitles the individual to freedom of thought, the
freedom to believe in what is right, and the freedom of self-determination. When
these guarantees intersect with gender, they create a private space which protects
all those elements which are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the dignity of the individual.
Above all, the privacy of the individual recognises an inviolable right to determine
how freedom shall be exercised. An individual may perceive that the best form of
expression is to remain silent. Silence postulates a realm of privacy. An artist finds
reflection of the soul in a creative endeavour. A writer expresses the outcome of a
process of thought. A musician contemplates upon notes which musically lead to
silence. The silence, which lies within, reflects on the ability to choose how to
convey thoughts and ideas or interact with others. These are crucial aspects of
personhood. The freedoms Under Article 19 can be fulfilled where the individual is
entitled to decide upon his or her preferences. Read in conjunction with Article 21,
liberty enables the individual to have a choice of preferences on various facets of life
including what and how one will eat, the way one will dress, the faith one will
espouse and a myriad other matters on which autonomy and self-determination
require a choice to be made within the privacy of the mind. The constitutional right
to the freedom of religion Under Article 25 has implicit within it the ability to choose
a faith and the freedom to express or not express those choices to the world. These
are some illustrations of the manner in which privacy facilitates freedom and is
intrinsic to the exercise of liberty. The Constitution does not contain a separate
Article telling us that privacy has been declared to be a fundamental right. Nor have
we tagged the provisions of Part III with an alpha suffixed right of privacy : this is
not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and freedom which the Constitution has
recognised. Privacy is the ultimate expression of the sanctity of the individual. It is
a constitutional value which straddles across the spectrum of fundamental rights
and protects for the individual a zone of choice and self-determination.
(emphasis supplied)
299. Privacy represents the core of the human personality and recognises the
ability of each individual to make choices and to take decisions governing matters
intimate and personal. Yet, it is necessary to acknowledge that individuals live in
communities and work in communities. Their personalities affect and, in turn are
shaped by their social environment. The individual is not a hermit. The lives of
individuals are as much a social phenomenon. In their interactions with others,
individuals are constantly engaged in behavioural patterns and in relationships
impacting on the rest of society. Equally, the life of the individual is being
consistently shaped by cultural and social values imbibed from living in the
community.
(emphasis supplied)
323. Privacy includes at its core the preservation of personal intimacies, the
sanctity of family life, marriage, procreation, the home and sexual orientation.
Privacy also connotes a right to be left alone. Privacy safeguards individual
autonomy and recognises the ability of the individual to control vital aspects of his
or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to the
private zone and from the private to the public arenas, it is important to underscore
that privacy is not lost or surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an essential facet of the dignity of
the human being;
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(emphasis supplied)
15. We now propose to deal with the judgment passed by learned Single Judge of
this Court in Noor Jahan (supra). Noor Jahan along with her alleged husband
approached this Court for claiming protection as it was alleged that she had embraced
Islam after renouncing her Hindu identity to contract a Nikah with her Muslim
husband. There were four more petitions filed by married couples, wherein the identity
of a lady in each case was analogous to that of Noor Jahan. The writ Court recorded
the following statements of the ladies who appeared in person before the Court.
16. Statement of Petitioner No. 1 (girl) in Writ C No. 58129 of 2014:—
17. Statement of Petitioner No. 1 (Girl) in Writ C No. 62587 of 2014:—
18. Statement of Petitioner No. 1 (Girl) in Writ C No. 60494 of 2014:—
19. Statement of Petitioner no. 1(girl) in Writ C No. 57068 of 2014:—
20. Statement of Petitioner no. 1(girl) in Writ C No. 58910 of 2014:—
21. We find from the judgement in Noor Jahan's case that no doubt the ladies in
question could not authenticate their alleged conversion as they were unable to show
the knowledge regarding the basic tenets of Islam, the writ court against the above
background held that the alleged marriage was illegal as it was performed after a
conversion which could not be justified in law.
22. We lest not forget that couples in Noor Jahan and other cognate petitions
preferred a joint petition on the basis of alleged conversion of one of the partners.
Once the alleged conversion was under clout, the Constitutional Court was obliged to
ascertain the wish and desire of the girls as they were above the age of 18 years. To
disregard the choice of a person who is of the age of majority would not only be
antithetic to the freedom of choice of a grown up individual but would also be a threat
to the concept of unity in diversity. An individual on attaining majority is statutorily
conferred a right to choose a partner, which if denied would not only affect his/her
human right but also his/her right to life and personal liberty, guaranteed under
Article 21 of the Constitution of India. We say so for the reason that irrespective of the
conversion being under clout, the mere fact that the couple was living together, the
alleged relationship can very well be classified as a relationship in the nature of
marriage distinct from the relationship arising out of marriage, in view of the
provisions of Protection of Women from Domestic Violence Act, 2005.
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23. The judgment in Priyanshi (supra) followed Noor Jahan (supra). None of these
judgments dealt with the issue of life and liberty of two matured individuals in
choosing a partner or their right to freedom of choice as to with whom they would like
to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law.
24. We before parting wish to reiterate that we are quashing the FIR primarily on
the ground that no offences are made out, as discussed above, as also the fact that
two grown up individuals are before us, living together for over a year of their own free
will and choice. The ultimate contention on behalf of the informant was that he be
afforded visiting rights to meet his daughter. Once petitioner no. 4 has attained
majority, then it is her choice, as to whom she would like to meet. We, however expect
the daughter to extend all due courtseys and respect to her family.
25. We clarify that while deciding this petition, we have not commented upon the
validity of alleged marriage/conversion.
26. In view of above discussion, the writ petition succeeds and is allowed. The
F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019, under Sections
363, 366, 352, 506 IPC and Section 7/8 POCSO Act, Police Station-Vishunpura,
District Kushi Nagar as well as all consequential proceedings are hereby quashed.
———
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SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.

Page 1 Saturday, December 04, 2021

In the High Court of Allahabad

Salamat Ansari and Others … Petitioners;

integrity of the physical aspects of personhood. The intersection between one's

17. Statement of Petitioner No. 1 (Girl) in Writ C No. 62587 of 2014:—

18. Statement of Petitioner No. 1 (Girl) in Writ C No. 60494 of 2014:—

19. Statement of Petitioner no. 1(girl) in Writ C No. 57068 of 2014:—

20. Statement of Petitioner no. 1(girl) in Writ C No. 58910 of 2014:—

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